Bill S108-2013

Authorizes the court to issue reasonable attorneys' fees when an agency fails to respond to certain freedom of information requests

Provides that the court in such a proceeding shall assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this article when such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access to freedom of information requests.

Actions

Memo

BILL NUMBER:S108

TITLE OF BILL: An act to amend the public officers law, in relation to freedom of information requests and attorneys' fees

PURPOSE: To require the court to issue reasonable attorney's fees when an agency fails to respond to certain freedom of information requests and discretion to issue reasonable attorney's fees in other circumstances.

SUMMARY OF PROVISIONS: Section 1. Allows a court discretion to award attorney's fees when a party substantially prevails or when an agency fails to respond within the statutory period.

Section 2. Requires the award of attorney's fees when agency denial of information cannot be justified

Section 3. Effective date.

JUSTIFICATION: When a public agency denies disclosure of information sought through a Freedom of Information request, the only recourse for the denied party is to initiate a judicial proceeding to challenge the denial. A judicial proceeding to challenge an agency's denial of disclosure is a costly endeavor in both time and money. The full proceeding can take several months from the time of filing to the exhaustion of all appeals. In addition, the cost of hiring an attorney can be significant depending on the length and scope of the proceedings. Under the current Freedom of Information law, the average individual simply cannot afford to take a government agency to trial just to exercise their right to access public information.

This bill will only require attorney's fees in the most egregious of agency denials, when there is no reasonable basis for the denial i.e. secrecy The courts will still retain the discretion to grant attorney's fees when a petitioner substantially prevails but the agency had a reasonable basis for the initial denial.

Open and responsive governments should not and cannot tolerate secrecy. By providing attorney's fees for people who succeed in challenging an agency's unlawful concealment of information, New York continues to its commitment to transparency.

Text

STATE OF NEW YORK
________________________________________________________________________
108
2013-2014 Regular Sessions
IN SENATE
(PREFILED)
January 9, 2013
___________

Introduced by Sen. GALLIVAN -- read twice and ordered printed, and when
printed to be committed to the Committee on Investigations and Govern-
ment Operations
AN ACT to amend the public officers law, in relation to freedom of
information requests and attorneys' fees
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (c) of subdivision 4 of section 89 of the public
officers law, as amended by chapter 492 of the laws of 2006, is amended
to read as follows:
(c) The court in such a proceeding may assess, against such agency
involved, reasonable attorney's fees and other litigation costs reason-
ably incurred by such person in any case under the provisions of this
section in which such person has substantially prevailed[,] OR when[:
i. the agency had no reasonable basis for denying access; or
ii. the agency failed to respond to a request or appeal within the
statutory time] THE AGENCY FAILED TO RESPOND TO A REQUEST OR APPEAL
WITHIN THE STATUTORY TIME.
S 2. Subdivision 4 of section 89 of the public officers law is amended
by adding a new paragraph (d) to read as follows:
(D) THE COURT IN SUCH A PROCEEDING SHALL ASSESS, AGAINST SUCH AGENCY
INVOLVED, REASONABLE ATTORNEYS' FEES AND OTHER LITIGATION COSTS REASON-
ABLY INCURRED BY SUCH PERSON IN ANY CASE UNDER THE PROVISIONS OF THIS
ARTICLE WHEN SUCH PERSON HAS SUBSTANTIALLY PREVAILED AND THE COURT FINDS
THAT THE AGENCY HAD NO REASONABLE BASIS FOR DENYING ACCESS.
S 3. This act shall take effect immediately.

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01979-01-3

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation.
Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech;
or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation
is generally performed Monday through Friday.